JUDGMENT
1. The Income-tax Appellate Tribunal, New Delhi, has referred the following question of law under Section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), for opinion to this court :
"In the facts and in the circumstances of the case, whether the Income-tax Appellate Tribunal was competent to recall its earlier order on the basis of mistakes pointed out and projected by the Tribunal in its order in the miscellaneous application under Section 254(2) ?"
2. The reference relates to the assessment year 1976-77.
3. Briefly stated the facts involved in the present case are as under :
The previous year ended on March 31, 1976. The respondent got married on November 25, 1975. In her return she had disclosed that she had jewellery worth Rs. 73,887 as on March 31, 1975, and in that respect had filed a confirmation from her father confirming the same, annexed with the list of jewellery at the time of her marriage. In the letter of confirmation it has been stated that she belonged to a large "Marwari" family with more than 100 members and as per their custom it was necessary for them to present gold and silver articles, utensils and small pieces of jewellery on major functions in the family. The Income-tax Officer in 1976-77 while framing the assessment for the assessment year 1976-77 made the addition of a sum of Rs. 73,887 on the ground that the source of investment had not been explained under Section 69A of the Act. In appeal the Appellate Assistant Commissioner has reversed the finding of the Income-tax Officer and directed deletion of the said amount. The Tribunal after reappreciating the confirmation letter, reversed the finding of the Appellate Assistant Commissioner and confirmed that of the Income-tax Officer. The respondent thereafter filed an application seeking rectification of the Tribunal's order on the ground that the finding was regarding addition of Rs. 7,065 and not to the addition of Rs. 73,887. The Tribunal has allowed the application and recalled its earlier order.
4. Heard Sri A. N. Mahajan, learned standing counsel for the Revenue, and Sri M.K. Goel, appearing on behalf of the respondents.
5. Learned counsel for the Revenue submitted that the Tribunal in fact, has reviewed its earlier order which is not permissible in law. We have gone through the order of the Tribunal and find that the Tribunal has recorded the following finding of fact while confirming the finding of the Income-tax Officer in so far as the issue of jewellery worth Rs. 73,887 is concerned :
"Having considered the rival submissions we are of the view that the order passed by the Appellate Assistant Commissioner on the issue before us cannot be possibly justified. The assessee was found to be in possession and ownership of the aforesaid jewellery it was for her to explain the source. The source did not mean only the birthdays and her wedding when she had received the gifts from her relations. If she desired that she should not be made liable under the Income-tax Act for the aforesaid jewellery it was obligatory on her part that the full particulars of the relations and the gifts made by them should have been disclosed to the Income-tax Officer. The declaration of her father which we have carefully scanned does not meet the requirement of law. No doubt there is a custom prevalent in the society that near relations make gifts on the occasion of one's birthdays as well as wedding but this information is only a vague assertion of a usage or custom prevalent in the society. It docs not meet the requirement of law that full particulars of the relations who have gifted the presents should be fully disclosed so that the Income-tax Officer if he chooses could verify. The assertion of a custom prevalent in the society cannot substitute the need of giving the full particulars regarding the relations and the gifts made by them to explain the source of the aforesaid jewellery. We have not been able to appreciate the observation of the Appellate Assistant Commissioner that the Income-tax Officer could not make an addition by acting on probabilities and merely on the basis of suspicion howsoever grave may be as it cannot take the place of proof. It was the Appellate Assistant Commissioner and not the Income-tax Officer who proceeded on the basis of probabilities to accept that the source of the aforesaid jewellery had been explained by the assessee. We again reiterate that it was not the onus of the Income-tax Officer to prove the source. The onus was on the asses-see. The Appellate Assistant Commissioner has misdirected himself in law when he made, this observation and reached a finding on the basis of this observation. His finding is prima facie erroneous in law and therefore needs to be vacated. We hold on the facts of the case that the assessee had failed to explain the source of the aforesaid jewellery to the satisfaction of the Income-tax Officer and accordingly we vacate the order of the Appellate Assistant Commissioner and restore the order passed by the Income-tax Officer."
6. From a reading of the aforesaid order it appears that the Tribunal had appreciated the material and evidence on record and come to the conclusion that the onus was upon the respondent to prove the source of investment. However, while passing the order under Section 254(2) of the Act the Tribunal has completely taken a somersault and recalled the order. Inasmuch as a specific finding has been given by the Tribunal regarding addition of Rs. 73,887 representing the value of jewellery, the source of which remained unexplained. In this view of the matter the Tribunal was not justified in recalling its order after November 13, 1986. In the case of Laxmi Electronic Corporation Ltd. v. CIT , this court has held that the Tribunal has no power to review. Its only power is one of rectification conferred by Sub-section (2) of Section 254 of the Act. The hon'ble Supreme Court in the case of Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, , has held that the power to review is an inherent power and it must be conferred by law either specifically or by necessary implication. In the case of Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, , the apex court has held that it is now well established that the quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction.
7. Thus it is now well settled that in the absence of any specific power conferred by the statute or inferred by implication, the Tribunal which has been constituted under the Act cannot exercise any power of review. No such power can be inferred by implication nor is there any specific provision in the Act providing for review. However, if an error falls within the provisions of Section 254(2) of the Act then surely the Tribunal can exercise the power conferred under the said Act and rectify its mistake. It is well settled that if the facts of a particular case have been recorded incorrectly or some error has crept in, which does not require any debate and is apparent on the record, such a mistake can be corrected in exercise of powers under Section 254(2) of the Act.
8. In this view of the matter, we answer the aforesaid question referred to us in the negative, i.e., in favour of the Revenue and against the assessee. There shall be, however, no order as to costs.